Posted on 07/09/2005 3:15:41 PM PDT by 1stFreedom
Lost in all the hoopla over potential nominees and "strict constructionists" is the battle over Judicial Review.
Judicial review was "created" in Marbury v. Madison. Nowhere in the constitution are the Federal Courts granted Judicial Review. They simply assumed that power in Marbury v. Madison.
Recently, the U.S. Court of Appeals for the 4th Circuit upheld a lower court decision that threw out a federal ban on partial birth abortions since it did not provide a "health" exception.
The problem is, the US Court of Appeals doesn't have the constitutional power to override Congress, yet it did.
A "strict constructionist" who adheres to Marbury v. Madison and the flawed principle of stare decisis (doctrine of precedent/settled law) won't do any good for the nation. It doesn't matter if George Bush were to fill the court with nine "strict constructionists" if they accepted stare decisis and Marbury V. Madison.
If you want to take the courts back from judicial tyrants, it's time to call for justices who won't be bound by terrible precedent and who recognize the authority of Congress and the inability of the court to rule on congressional legislation.
It's time to call for nominees who refuse to be bound by illicit precedents and illicit power grabs. Now is the window of opportunity to fix the courts, and it will take much more than nominees whose only qualification is that they are a "strict constructionist."
It's essential that you call your Senators and the White House Monday to demand nomination and approval of nominess who reject both Marbury V. Madison and "stare decisis".
The thinking isn't flawed at all. The degree of action and reaction is meant to be measured and "timed" (easier to unelect a president, harder -- but not unreasonable -- to impeach a judge for political reasons).
Eternal debate is always settled, eventually, by force or threat of force.
So Hamilton, Marshall, Scalia, Bork and over 2 centuries of Constitutional law down the drain then? Again what do you think is meant by the term 'all Judicial Power'?
If it worked -- yes. When has impeachment ever worked against a Supreme Court judge?
I agree. I have no argument with term limits at all.
Very few people alive today have taken the time and trouble to understand the legal mumbo jumbo therein, let alone synthesize its principle.
Based on your opinion that the decsion is awful, I think you are not one of those people.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
There are bad judicial decision just like there are bad laws. the system we have no is as good as it gets. There has never been a better one in human history. Throwing out MvM would basically shrink us down to 2 branches and concentrate power. There is nothing stoppping Federal and State Legislatures from passing a Right to Life Constittuional amendment. Or appointing better Justices. Or passing a Term Limit Amendment.
Not anywhere near as important as making sure Constitutional rights and the Constitution are protected. The SCOTUS ruling upholding all the various State and fed bureaucratic nitpicking laws are clearly unconstitutional, yet SCOTUS ruled contrary to that. Stare decisis is only as good as what it protects!
Utter waste of time. Any prospective nominee who advocated such irresponsible legal positions would be laughed out of the Senate.
It hasn't. But it is historical fact that when impeachment of a SCOTUS justice was attempted, it was based on a political issue. The people have "the power," if they learn how to use it.
Once half the population learns it can vote largess for itself, from the public treasury, well, all bets are off. Game over.
Don't forget to eliminate judicial immunity while you're at it. Under the current way our judicial system operates, a corrupt or incompetent judge can do anything he wants to you while functioning "in a judicial capacity"--he can lie, fabricate evidence, ignore the law, make up his own law to deprive you of your life, liberty, or property. We won't have freedom until we hold judges accountable for their behavior. Each and every judicial hearing needs to be taped, and each judge's performance and behavior needs to be continuously reviewed--not by his coopted peers, but by a body of citizens. Penalties for misbehavior should be severe.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
Of course, the present situation, with judicial activists interpreting the Constitution whatever way they please has also resulted in a Constitution with no meaning. What we need to do is go back to the situation we had until approximately the 50's, where the Supreme Court was the final authority on what the Constitution meant, but the Justices on the Supreme Court viewed themselves as bound by the language of the Constitution, and did not view themselves as exercising power to change things.
That's circular as can be.
Then why did everything else you wrote argue (correctly) AGAINST a final authority by arguing (correctly) for executive nullification a la Andrew Jackson in Worcester v Georgia (1832)?
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
If the Framer's intended the judiciary to have the final word over the Legislature why didn't they just spell out "Judicial Review" in The Constitution? Why were they so fearful of an out of control judiciary? Why did they limit the powers of the judiciary, and give Congress authority to limit their scope?
When you start answering these questions you get an idea of what the Framer's were afraid of, and why they concentrated power in the elected branches of government.
Like so many things, good in principle, possibly corrupt in practice. In any event, not a principle worthy of hanging ones ultimate fate on.
Unfortunately, it appears he appointed 9 Kings to decree Marbury v. Madison and thereby negate the constitution of the United States the first time the Supreme Court found itself in a bind...
Mob rule worked so well in France in 1794, so let's try it here, eh?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.